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Antitrust

Big Tech Gets a Big Lashing by Democratic Presidential Candidates, on Antitrust, Section 230 and Data Privacy

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Screenshot of interaction between Sens. Harris and Warren on Trump and Twitter

Big technology companies were a big target during Tuesday night’s debate in Ohio of the leading Democratic presidential candidates.

No new candidate joined Massachusetts Sen. Elizabeth Warren’s pledge to break up Facebook, Amazon and Google, with the possible exception of billionaire climate activist Tom Steyer.

But almost all who commented on the topic dumped on Silicon Valley powerhouses over their use of private data, their promotion of addictive screen-time behavior, and their alleged refusal to better police the content that appears online.

And everyone who commented on antitrust enforcement said they would appoint more vigorous and trust-busting law enforcement.

Section 230 implicitly criticized by Beto O’Rourke

Former Rep. Beto O’Rourke of Texas promoted his arguments against Section 230 of the Communication Decency Act, a proposal to take liability away from internet companies don’t do more to remove hate speech from their web sites.

Without referring specifically to Section 230, his comments suggested that Facebook needs to take affirmative responsible as a “publisher” for all the content on its platform:

  • Right now, we treat them functionally as a utility, when, in reality, they’re more akin to a publisher. They curate the content that we see. Our pictures and personal information that they share with others, we would allow no publisher to do what Facebook is doing, to publish that ad that Senator Warren has rightfully called out, that CNN has refused to air because it is untrue and tells lies about the vice president, treat them like the publisher that they are. That’s what I will do as president.

And while O’Rourke said he would “be unafraid to break up big businesses if we have to do that,” he criticized Warren for singling out particular companies. “I don’t think it is the role of a president or a candidate for the presidency to specifically call out which companies will be broken up.”

Andrew Yang wants a data check in the mail

In this tech-bashing segment of the debate, former tech executive Andrew Yang had the first word and the last word.

His first word was that breaking up big tech wasn’t the solution to reviving Main Street businesses because “network efforts” are a powerful forcing driving what is commonly referred to as a “winner take all” economy.

“And as the parent of two young children, I’m particularly concerned about screen use and its effect on our children. Studies clearly show that we’re seeing record levels of anxiety and depression coincident with smartphone adoption and social media use.”

He didn’t get a chance in that first answer to elaborate on the “21st century solutions” that he would use — as opposed to making use of Warren’s “20th century antitrust framework.”

But in his close-out remarks in the segment, he zeroed in on data privacy legislation as one way to turn the tide against the power of Big Tech:

  • The best way we can fight back against big tech companies is to say our data is our property. Right now, our data is worth more than oil. How many of you remember getting your data check in the mail? It got lost. It went to Facebook, Amazon, Google. If we say this is our property and we share in the gains, that’s the best way we can balance the scales against the big tech companies.

Bizarre exchange between Kamala Harris and Elizabeth Warren over Trump and Twitter

Perhaps the weirdest interaction during the roughly 15-minute segment of the three-hour debate came when Sen. Kamala Harris, D-Calif., vainly attempted to pin Warren down on her own pet peeve: Pushing President Trump off of Twitter.

Two weeks ago, Harris told CNN that Twitter should suspend Trump’s use of the social media platform because of his “irresponsible” use of the platform, and that he was “using his words in a way that could subject someone to harm.”

When Harris got the platform on the topic on Tuesday night, she pivoted from blasting Facebook CEO Mark Zuckerberg for making a “ridiculous argument” about election disinformation to chiding Warren, the intellectual leader of the Democratic pack.

“I was surprised to hear that you did not agree with me that on this subject of what should be the rules around corporate responsibility for these big tech companies, when I called on Twitter to suspend Donald Trump’s account,” Harris said.

“So, look, I don’t just want to push Donald Trump off Twitter,” Warren replied. “I want to push him out of the White House. That’s our job.”

On the issue of breaking up Facebook, Google and Amazon, Warren stood her ground: “Look, I’m not willing to give up and let a handful of monopolists dominate our economy and our democracy.”

“We need to enforce our antitrust laws, break up these giant companies that are dominating, big tech, big pharma, big oil, all of them,” she said.

But Warren appeared disinclined to talk specifically about Big Tech, and kept coming back to “the elephant in the room, and that is how campaigns are financed.”

Continuing, Warren said, “I announced this morning that I’m not going to take any money from big tech executives, from Wall Street executives. We’ve already agreed, Bernie and I, we’re not taking any money from big pharma executives. You can’t go behind closed doors and take the money of these executives and then turn around and expect that these are the people who are actually finally going to enforce the laws. We need campaign finance rules and practices.”

Other views on big tech and antitrust

Steyer used his less-than-two-minutes-of-fame on the topic to “agree with Sen. Warren that, in fact, monopolies have to be dealt with. They either have to be broken up or regulated, and that’s part of it.”

But he quickly pivoted to promoting his biography as a billionaire:

  • In fact, if we want to beat Mr. Trump, I think somebody who can go toe to toe with him and show him to be a fraud and a failure as a businessperson, and a fraud and a failure as a steward of the American economy is going to be necessary. He is one. His tax plan’s a failure. His trade war is a failure. I would love to take him on as a real businessman and show that, in fact, he’s failed the American people, and he has to go.

Senators Cory Booker, of New Jersey, Amy Klobachur, of Minnesota, and Bernie Sanders, of Vermont, and former Secretary of Housing and Urban Development Julian Castro, all said they would be more aggressive in antitrust enforcement.

Former Vice President Joe Biden and Mayor Pete Buttigieg did not weigh in on the subject., and Rep. Tulsi Gabbard was cut off when she began to comment on tech.

 

Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney at The CommLaw Group. He has closely tracked the trends in and mechanics of digital infrastructure for 20 years, and has helped fiber-based and fixed wireless providers navigate coverage, identify markets, broker infrastructure, and operate in the public right of way. The articles and posts on Broadband Breakfast and affiliated social media, including the BroadbandCensus Twitter feed, are not legal advice or legal services, do not constitute the creation of an attorney-client privilege, and represent the views of their respective authors.

Antitrust

Federal Trade Commission Will Likely Not Be Able to Implement Competition Rules, Panelists Say

Panelists at TechFreedom event said judiciary will prevent the FTC from developing proposed antitrust policies.

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Photo of Peter Wallison from C-SPAN

WASHINGTON, October 22, 2021 –The Federal Trade Commission’s attempts to use rulemaking authority to issue antitrust policy governing technology companies will be struck down in federal courts, said panelists participating in a TechFreedom event on Thursday.

Recently formed conservative majorities on the Supreme Court and other panels have expressed opposition to the idea that the FTC possesses such rulemaking authority, these panelists said.

Hence, unlike past supreme courts, they current bench is likely to strike down FTC-issued binding rules.

Panelists highlighted former President Donald Trump appointees Brett Kavanaugh and Neil Gorsuch as justices who have opposed legal reasoning often used to permit FTC rulemaking.

Indeed, some panelists said early 20th Century legislation governing the FTC makes the case that the agency was created as an investigative body rather than a regulatory one.

Peter Wallison, senior fellow emeritus at the American Enterprise Institute, said that between five and six Supreme Court justices would ultimately vote to weaken precedents that allow for FTC rulemaking.

The Judiciary Committee of the House of Representatives recently advanced six antitrust bills that attempt to regulate the tech industry and foster greater competition, including the Ending Platform Monopolies Act and the Platform Competition and Opportunity Act.

FTC rules have taken on increased importance in terms of economic regulation due to the frequent inability of Congress to pass major legislation due to partisan gridlock. The FTC has proposed new procedures to ensure competition since Lina Khan was appointed as chair.

However, NERA Economic Consulting on Wednesday concluded that legislative proposals to regulate competition would impose costs of around $300 billion while impacting 13 additional American companies in the near term and more than 100 companies in the next decade.

Study author Christian Dippon contends that the legislation would limit American startup growth and international competitiveness while at the same time increasing costs for Americans.

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Antitrust

Public Interest Groups Urge Passage of Six Antitrust Bills Targeting Big Tech

Nearly 60 public interest groups signed a letter to House leaders to call a vote on six antitrust bills.

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WASHINGTON, September 2, 2021 – Nearly 60 public interest groups signed a letter Thursday urging the House party leaders to push for a vote on six antirust bills that cleared the House judiciary committee in June.

The goal of the six bills is to rein in the power of Big Tech through new antirust liability provisions, including new merger and acquisition review, measures to prevent anticompetitive activity, and providing government enforcers more power to break-up or separate big businesses. They include American Choice and Innovation Online Act, H.R. 3816, Platform Competition and Opportunity Act, H.R. 3826, Ending Platform Monopolies Act, H.R. 3825, Augmenting Compatibility and Competition by Enabling Service Switching (ACCESS) Act, H.R. 3849, Merger Filing Fee Modernization Act, H.R. 3843, and State Antitrust Enforcement Venue Act, H.R. 3460.

The letter, which was directed at House Speaker Nancy Pelosi, D-California, and House Minority Leader Kevin McCarthy, R-California, were promoting a package of six bills that were the result of a two-year bipartisan investigation that included 10 hearings, featuring the testimony of the CEOs of the major tech companies, 240 interviews, 1.3 million documents and a 450-page report, the letter notes.

“We believe that these bills will bring urgently needed change and accountability to these companies and an industry that most Americans agree is already doing great harm to our democracy,” the letter said. Public Citizen was the first of the 58 groups on the letter.

America has a monopoly problem. Monopoly power lowers wages, reduces innovation and entrepreneurship, exacerbates income and regional inequality, undermines the free press and access to information, and perpetuates toxic systems of racial, gender, and class dominance,” the letter alleged.

“Big Tech monopolies are at the center of many of these problems,” it continued. “Reining in these companies is an essential first step to reverse the damage of concentrated corporate power throughout our economy. The bills that passed out of the House Judiciary Committee, with bipartisan support, do just that and it is imperative that they move forward in the House.”

List of signatories:

  • Public Citizen
  • Accountable Tech
  • Action Center on Race & the Economy
  • ALIGN: The Alliance for a Greater New York
  • Alliance for Pharmacy Compounding
  • American Booksellers Association
  • American Family Voices
  • American Independent Business Alliance
  • American Specialty Toy Retailing Association
  • Artist Rights Alliance
  • Athena
  • Cambridge Local First
  • Center for American Progress
  • Center for Digital Democracy
  • Center for Popular Democracy
  • Committee to Support the Antitrust Laws
  • Decode Democracy
  • Demos
  • Electronic Frontier Foundation
  • Friends of the Earth
  • Future of Music Coalition
  • Gig Workers Rising
  • Global Exchange
  • Indivisible Georgia Coalition
  • Indivisible Hawaii
  • Indivisible Ulster/NY19
  • Institute for Local Self-Reliance
  • International Brotherhood of Teamsters
  • Jobs With Justice
  • Kairos Action
  • Local First Arizona
  • Louisville Independent Business Alliance
  • Main Street Alliance
  • Mainers for Accountable Leadership
  • Media Alliance
  • Metropolitan Washington Council, AFL-CIO
  • National Employment Law Project
  • New York Communities For Change
  • New York Communities for Change
  • North American Hardware and Paint Association
  • Open Markets Institute
  • Our Revolution
  • PowerSwitch Action
  • Public Knowledge
  • Running Industry Association
  • Secure Elections Network
  • Service Employees International Union
  • Shop Local Raleigh/Greater Raleigh Merchants Association
  • SIMBA (Spokane Independent Metro Business Alliance)
  • Small Business Rising
  • Stand Up Nashville
  • StayLocal, an initiative of Urban Conservancy
  • Strategic Organizing Center
  • SumOfUs
  • The Democratic Coalition
  • UltraViolet
  • Venice Resistance
  • Warehouse workers for justice

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Antitrust

FTC Commissioner Phillips Warns About Shifting Direction of Agency

Noah Phillips voiced concern about the scope and practices of the Biden administration’s FTC.

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FTC Commissioner Noah Phillips

WASHINGTON, September 2, 2021 — Federal Trade Commissioner Noah Phillips said at a Hudson Institute webinar on Monday that he’s concerned about the direction the competition watchdog is moving toward considering recent events.

Phillips said the left-leaning voices in Washington and the appointment of Lina Khan to chair the agency has left him wondering about the legacy of the last 40 years of competition regulation in America – which have been hallmarked by the Hart-Scott-Rodino Antitrust Improvements Act of 1976. That legislation effectively gave the FTC the ability to review mergers and acquisitions before they were finalized, rather than afterward, which governed pre-legislation.

Under Biden-appointee Lina Khan, Phillips described how the FTC has done away with the process of early termination. In the past, this process made it unnecessary for every single company to provide advanced notice and advanced approval for mergers. “Historically, parties have been able to come to the agencies and say, ‘You’re not interested in this, can we just go ahead and finish our deal,’ and the agencies have said ‘yes.’”

He said this is no longer the case, and that every single merger must provide advanced notice and approval. “What we’re introducing is an inefficiency in the market for transactions that we have no interest in pursuing, just for the sake of it. I think that’s a problem,” he continued. “My concern is that it is making merger enforcement less effective, less efficient, and less fair.”

Phillips pointed to left-of-center and leftist voices in Congress, such as Rep. David Cicilline, D-New York, Sen. Elizabeth Warren, D-Massachusetts, and Rep. Alexandria Ocasio-Cortez, D-New York, who, at the outset of the pandemic, wanted to ban all acquisitions and mergers—regardless of their merit. He described this view as falling outside of mainstream perspectives, but noteworthy nonetheless.

“I don’t think that is what most people believe,” Phillips remarked. “I don’t think that is what Hart-Scott-Rodino envisions.”

This webinar took place only a couple of weeks after Phillips spoke at the Technology Policy Institute’s 2021 Aspen Forum, where he voiced similar concerns, stating that he feared that this new direction would make it more difficult for the FTC to hear cases that it should, and defended the commission’s record against critics who said it was lax under the Trump Administration.

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